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Diversity Jurisdiction and Trusts 35802-nyu_89-6 Sheet No. 184 Side A 12/19/2014 13:53:46 \\jciprod01\productn\N\NYU\89-6\NYU607.txt unknown Seq: 1 11-DEC-14 15:41 DIVERSITY JURISDICTION AND TRUSTS JONATHAN J. OSSIP* The federal courts are currently divided on how to determine the diversity citizen- ship of trusts. Several circuits hold that trusts take the citizenship of their trustees. Another circuit holds that trusts take the citizenship of the trust’s beneficiaries, and yet another considers the citizenships of both the trustees and the beneficiaries. But beyond this circuit split, a more significant problem plagues the law in this area: The courts of appeals have failed to recognize the distinction between traditional and business trusts. The former—what is most commonly thought of as a trust—is a gift and estate planning tool. The latter is an alternative to incorporation, and is designed to run a business and generate profit for investors. In this Note, I examine the differences between traditional and business trusts in the context of federal diversity jurisdiction. After discussing the history of diversity jurisdiction and the nature of these two forms of trusts, I explore the current circuit split over the citizenship rules for trusts. I then propose a new rule that fits within the current Supreme Court case law in the field: Traditional trusts take the citizen- ship of their trustees, while business trusts take the citizenship of their members— the beneficiaries. Having proposed a rule that depends upon the type of trust at issue, I conclude by explaining that a trust can be classified by determining the primary purpose for which it was organized. INTRODUCTION ................................................. 2302 R I. THE DEVELOPMENT OF DIVERSITY JURISDICTION AND THE LAW O F TRUSTS .................................... 2305 R A. Diversity Jurisdiction for Jural Entities .............. 2305 R B. Traditional and Business Trusts ..................... 2308 R 1. The Traditional Trust as a Common Law Tool ............................................ 2308 R a. The Role of the Trustees ................... 2310 R 35802-nyu_89-6 Sheet No. 184 Side A 12/19/2014 13:53:46 b. The Role of the Beneficiaries............... 2311 R 2. The Arrival of the Business Trust ............... 2312 R II. THE CURRENT STATE OF TRUSTS AND THE FEDERAL COURTS ................................................. 2315 R * Copyright © 2014 by Jonathan J. Ossip. J.D., Candidate, 2015, New York University School of Law; B.A., 2012, University of Florida. I would like to thank my advisor, Professor Troy McKenzie, for his outstanding comments, suggestions, and support. My sincerest gratitude also goes to Stephen Schweizer for his advice and assistance in devel- oping this project, and I am truly indebted to Judge Shira A. Scheindlin for her guidance and mentorship. Finally, I would be remiss in not recognizing the outstanding staff of the New York University Law Review: Ben Zhu and Gregg Re for shepherding this Note through the production process; Amy Oden, Caroline Odorski, and Shayon Ghosh for their impeccable editing; Paul White, Eileen Woo, Davis Woodruff, and Angela Wu for their thoughtful corrections; the anonymous reviewers who worked on this piece in its infancy; and to everyone else who had a hand in bringing this paper to print. To you and to all those who have brought wonder and joy into my life, I am forever thankful. 2301 35802-nyu_89-6 Sheet No. 184 Side B 12/19/2014 13:53:46 \\jciprod01\productn\N\NYU\89-6\NYU607.txt unknown Seq: 2 11-DEC-14 15:41 2302 NEW YORK UNIVERSITY LAW REVIEW [Vol. 89:2301 A. Navarro Savings Association v. Lee: The Source of Modern (Mis)interpretation ......................... 2316 R B. The Current Divide: A Three (or More) Way Split . 2317 R 1. Citizenship of Trustees as Controlling ........... 2318 R 2. Citizenship of Beneficiaries as Controlling ...... 2319 R 3. The Emerald Investors Mixed Approach: Both Trustees and Beneficiaries Control .............. 2320 R 4. Another Alternative: The Wright and Miller Approach ....................................... 2322 R C. Conflating Traditional and Business Trusts.......... 2323 R III. DETERMINING THE CITIZENSHIP OF TRUSTS ............ 2324 R A. The Trustees Determine Diversity Citizenship for Traditional Trusts ................................... 2326 R B. The Beneficiaries are the “Members” of Business Trusts ............................................... 2329 R C. Classifying the Trust ................................ 2332 R 1. The Primary Purpose Test ...................... 2332 R 2. Supplementary Factors .......................... 2333 R CONCLUSION ................................................... 2334 R INTRODUCTION On November 20, 2013, international media mogul Rupert Murdoch was in Manhattan, standing before a New York state judge. Murdoch was no stranger to the legal system—news coverage in the previous two years prominently featured his testimony before Parliament and a London judicial inquiry, all stemming from a tabloid 35802-nyu_89-6 Sheet No. 184 Side B 12/19/2014 13:53:46 phone-hacking scandal that mired his company in litigation.1 But in the New York courthouse, the chairman of News Corp. was facing an experience shared by countless others across the world every year: He was getting a divorce.2 1 See, e.g., John F. Burns, Murdoch, Center Stage, Plays Powerless Broker, N.Y. TIMES, Apr. 26, 2012, at A1 (“[W]hen Mr. Murdoch took center stage on Wednesday at Britain’s most avidly followed public inquiry in years, at one point defying his 81 years by virtually trotting into the witness box, he hardly seemed the power-hungry newspaper baron of legend, nor in any way the patron of the black arts that have made his tabloid newspapers in Britain the center of the country’s most wide-ranging criminal inquiry.”); Robert Hutton & Thomas Penny, Murdoch to Testify to Parliament as Police Seek Tape, BLOOMBERG NEWS (July 10, 2013, 7:21 AM), http://www.bloomberg.com/news/2013-07-09/murdoch-ag rees-to-testify-to-parliament-as-police-seek-ta.html (“Rupert Murdoch agreed to testify before the U.K. Parliament a second time as London police sought a recording of him discussing probes of bribery and phone-hacking at company newspapers.”). 2 See Jennifer Saba, Rupert Murdoch and Wendi Deng Agree to Divorce Settlement, REUTERS, Nov. 20, 2013, available at http://www.reuters.com/article/2013/11/20/us-mur doch-divorce-idUSBRE9AI19D20131120 (“Rupert Murdoch and his wife, Wendi Deng 35802-nyu_89-6 Sheet No. 185 Side A 12/19/2014 13:53:46 \\jciprod01\productn\N\NYU\89-6\NYU607.txt unknown Seq: 3 11-DEC-14 15:41 December 2014] DIVERSITY JURISDICTION AND TRUSTS 2303 Like any other divorce, the split of Rupert Murdoch and Wendi Deng included the division of marital property, albeit on a signifi- cantly larger scale.3 However, the Murdoch family’s control over News Corp. is unlikely to wane: “Nearly all of the Murdoch family’s voting stock—a block of 38.4%—is held through the Murdoch Family Trust,” of which Deng is not a beneficiary.4 At the start of 2014, those shares alone held a value of over $2.5 billion.5 Despite the billion-dollar status of entities like the Murdoch Family Trust, the law governing their ability to litigate in federal court is presently in a state of mass confusion. When facing the question of how to determine the diversity citizenship of trusts, the courts of appeals have split three ways: Some circuits count the citizenship of the trustees, another counts the citizenships of the beneficiaries, and yet another counts both. This division creates the risk of forum shop- ping for the purpose of gaining or defeating federal diversity jurisdic- tion, especially since some of these rules depend on the substantive law of the state in which the federal district court is located.6 Even more importantly, the divide generates uncertainty for litigants in cir- cuits that have not yet decided this question, resulting in significant costs to litigate a jurisdictional question in cases that may be dismissed without a decision on the merits. Beyond this disagreement, none of the current approaches have recognized the important distinction between the traditional trust—a tool designed for transfer and estate planning—and the business trust—a substitute for the corporate form. Despite their shared termi- nology, the two forms differ dramatically. The first is best seen as an agreement or set of fiduciary duties, while the second is an artificial 35802-nyu_89-6 Sheet No. 185 Side A 12/19/2014 13:53:46 entity designed to run a business and generate profit for investors. The citizenship rules currently employed by the courts of appeals fail to Murdoch, appeared before a Manhattan judge on Wednesday in a 10-minute hearing that cleared the way for ending their 14-year marriage.”). 3 See id. (“[A] person familiar with the terms of settlement said Deng is expected to keep the couple’s home in Beijing and their Fifth Avenue apartment in Manhattan, purchased in 2004 for a then-record $44 million.”). 4 Martin Peers & Melissa Marr, News Corp. Chief Files for Divorce, WALL ST. J., June 14, 2013, at B3. 5 At that time, News Corp. Class B shares (ticker symbol NWS)—the type of shares held in the Murdoch Family Trust, see Laurence Knight, Who Calls the Shots at News Corp?, BBC NEWS, http://www.bbc.co.uk/news/business-14183571 (last updated July 19, 2011, 2:36 PM) (“[O]f the remaining ‘B shares’—the ones with voting rights—the Murdoch family trust owns only a 38% stake . .”)—had a market capitalization of $6.76 billion, News Corp (NASDAQ:NWS), GOOGLE FIN. (Jan. 6, 2014, 2:13 PM), https://www.google .com/finance?q=NASDAQ:NWS. 6 See infra note 185 and accompanying text (discussing how the ability of trusts to sue or be sued in the federal courts is determined by the law of the forum state).
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